Debate on whether a jail can be used as a court in the Zia Orphanage Trust case
Tasmiah Nuhiya Ahmed, Executive Editor, The New York Times, Bangladesh National Section:
Debate on whether a jail can be used as a court in the Zia Orphanage Trust case
The Anti-Corruption Commission (ACC) filed the Zia Orphanage Trust case on 3 July 2008 with Ramna Police Station accusing the chairperson of BNP, Begum Khaleda Zia, her eldest son Mr. Tarique Rahman, and four others for misappropriating over Tk 21. 0 million (2.10 crore) that came as grants for orphans from a foreign bank. The government has set up a temporary court at the old Dhaka central jail to hold the trial of BNP Chairperson Khaleda Zia and three others in the Zia Charitable Trust corruption case. The law ministry of Bangladesh issued the gazette notification on 4 September 2018 stating that the proceedings in the Zia Charitable Trust case would now be held at the old Dhaka central jail on Nazimuddin Road. The decision was made taking Begum Khaleda Zia’s security into consideration. As per the gazette notification, dated 4 September 2018; the court trial was held in a graft case against BNP Chairperson Khaleda Zia on 5 September 2018. In response to the gazette notification on 4 September 2018; BNP Chairperson Khaleda Zia sent a legal notice to the government, requesting it to cancel the gazette notification that said the trial of Zia Charitable Trust corruption case against her will be held at old Dhaka central jail. Barrister Muhammad Nawshad Zamir, Advocate, Bangladesh Supreme Court served the legal notice on behalf of Begum Khaleda Zia saying that appropriate legal action will be taken if the law ministry does not cancel and rescind the gazette notification by September 8 of 2018. Barrister Zamir said in the legal notice that “the special order declaring a room in Administrative Building of old Dhaka central jail as a court for holding trial of one particular case has been issued by the government with malafide, colourful exercise, and palpable abuse of power under Section 9(2) of the Code of Criminal Procedure 1898 (CrPC)”. He said in the legal notice that Section 9(2) of CrPC empowers the government to direct at what ‘place’ or ‘places’ a court of sessions shall hold it sitting. Barrister Zamir mentioned in the legal notice that ““Place” has been defined in Section 4(1)(q) of the CrPC as “including a house, building, tent, or vessel; but does not contemplate a prison”. The said notice also stated that the special order declaring a particular room in the old Dhaka central jail is absolutely illegal and without lawful authority as being totally unwarranted by law. The lawyer also said in the legal notice that the special order is void as being passed illegally and without lawful authority, infringing Article 35(3) of the constitution of the country that guarantees every person accused of a criminal offence the inalienable fundamental right “to a speedy and public trial.
Section 9(2) of CrPC provides that the Government may, by general or special order in the official Gazette, direct at what place or places the Court of Session shall hold its sitting; but, until such order is made, the Courts of Session shall hold their sittings as heretofore. Section 4 (1)(q) of CrPC provides that . “place” includes also a house, building, tent and vessel.
Therefore, the law is silent on the matter that if a trial can be conducted in a jail or not. It only states that the “place” includes also a house, building, tent and vessel.
Moreover, as per Article 35 (3) of the Constitution, every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court or tribunal established by law.
As provided in Black’s Law Dictionary, public trial means an open court where people can witness the proceedings as long as they show reasonable behaviour. In general terms, public trial is a trial where the public can come to the trial and hear the proceedings as opposed to secret trial or In Camera/in chambers. Anyone may enter
such a trial and observe, assuming there is room
in the court, and people can follow information
about trial proceedings in the media. In some
cases, such trials may be broadcast if there is
intense public interest and there are concerns
about accommodating all the spectators. This is in
contrast with a closed trial, where proceedings are
open only to those involved.
With regards to the explanation given by the lawyers of the BNP Chairperson Khaleda Zia, the Attorney General said that the laws are being misinterpreted and misrepresented by the lawyers of BNP Chairperson. He said the gazette notification, dated 4 September 2018 was issued by the Government complying due procedure as prescribed under the law.
Hence, the matter shall be open before the court to decide if challenged and I found that this issue requires extensive research before coming to the conclusion.